People v. Houlihan, 2-87-0012
| Decision Date | 23 March 1988 |
| Docket Number | No. 2-87-0012,2-87-0012 |
| Citation | 521 N.E.2d 277,167 Ill.App.3d 638 |
| Parties | , 118 Ill.Dec. 209 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gavin P. HOULIHAN, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
James E. Ryan, Du Page Co. State's Atty., Wheaton, William L. Browers, Deputy Director, Marshall M. Stevens, State's Attys. Appellate Prosecutor, Elgin, for People.
John F. Donahue, Oak Brook, Serkland & Muelhausen, Chicago, for Gavin P. Houlihan.
Defendant, Gavin Houlihan, was charged with two counts of driving under the influence of alcohol. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.) The trial court granted his motion to suppress evidence and quashed his arrest on the ground that the arresting officer had no reasonable basis to stop defendant's vehicle. The State appeals, contending that the officer's decision to stop defendant's truck was reasonable under Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; and section 107-14 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1985, ch. 38, par. 107-14).
Officer Hugh DeWitt of the Wheaton police department was on routine patrol at approximately 2:50 a.m. on May 29, 1986. He was headed west on Sawyer Avenue in a residential section of Wheaton when he saw a truck headed in the opposite direction. As the truck, which was being driven by defendant, approached DeWitt's car, the officer heard a loud noise which he described as similar to a snowplow on dry pavement. DeWitt testified that he could tell there was something under defendant's truck, but he could not identify the object because he was blinded by defendant's headlights. DeWitt then stopped defendant's truck.
As defendant and DeWitt both got out of their vehicles, DeWitt noticed that defendant had an odor of alcohol on his breath and seemed unsure of his balance. DeWitt asked defendant if he was aware of a loud noise coming from his truck and whether there were any problems with the truck. Defendant responded that there was nothing wrong with his truck. DeWitt then looked under the front end and noticed a large plastic garbage can wedged underneath the truck between the front bumper and the wheel well. DeWitt asked defendant what had happened. Although defendant had previously told DeWitt that he was on his way home from Lombard, he then stated that he must have run over the trash can when he left his house.
DeWitt then administered two field sobriety tests. In his opinion, defendant did not perform well on these tests. DeWitt then informed defendant that, in the officer's opinion, he was under the influence of alcohol and arrested him.
Officer William Cannon of the Wheaton police department also testified. Cannon arrived on the scene while DeWitt was administering the sobriety tests. Cannon noticed the garbage can wedged under the front end of defendant's truck. Cannon investigated how the can came to be there. Papers in the can led Cannon to an address on Sawyer Avenue. Upon arriving at that address, he noticed garbage strewn for some 60 yards down the street. Cannon saw tire tracks on the parkway leading up to other garbage cans similar to the one under defendant's truck. After hearing this evidence, the court granted defendant's motion. The court found that Officer DeWitt did not see the garbage can under defendant's truck prior to making the stop, and that the mere fact of hearing a noise did not provide a specific and articulable basis for the stop. The State appeals, contending that the loud noise emanating from defendant's truck at 3 a.m. provided the officer with a sufficient basis to make an investigatory stop.
This case comes to us in an unusual posture. While the defendant has the burden of proof on a motion to suppress evidence to establish that, in the instant case, there was no factual basis for a reasonable suspicion that defendant had committed or was commiting a crime, the State presented the only case. (People v. Neal (1985), 109 Ill.2d 216, 93 Ill.Dec. 365, 486 N.E.2d 898.) Defendant presented no case. The State called Officer DeWitt, who stopped defendant, and Officer Cannon, who came upon the scene subsequent to the stop. The defense called no witnesses. However, Officer DeWitt's testimony, on cross-examination by defense counsel, adduced relevant evidence supporting defendant's motion. The trial court could have concluded that the cross-examination of Officer DeWitt established a prima facie showing that the facts known to the police did not establish an articulable basis for a reasonable belief that defendant had committed a felony or misdemeanor sufficient to authorize an investigatory stop. (See Ill.Rev.Stat.1985, ch. 38, par. 107-14.) The record discloses the following question and answer by defense counsel and Officer DeWitt respectively:
The record also discloses the following testimony by Officer DeWitt:
Finally, the record discloses the following from the State's final argument:
"I think looking at it from the officer's point of view, traveling at that hour of the morning, in a residential area, what else is he to do at that point then [sic ] to make some sort of investigatory stop--either some sort of equipment--possible equipment violation or for whatever could have been underneath that truck."
The trial court then concluded:
"There are two problems here--two issues, rather. The grounds [sic ] for the stop and then whether or not after the stop there was probable cause to arrest the defendant for driving under the influence after the stop.
As to the stop, the State mentions the garbage can under the truck, but the key--the problem I saw initially, and the problem I still see, is that the officer's testimony was that he didn't see that garbage can. In fact, he didn't see anything when the car passed him. He heard a noise, and he stopped the car because he heard the noise. That's the way the testimony came out. Everything about the garbage can comes out after the stop.
I have reread McGowan, and I think McGowan clearly says there has to be--that it can be less than probable cause to make a stop, but there still has to be some specific and articulable facts before the officer can make that stop. I think the way the testimony came out, I do not think there were articulable and specific facts. In this case, I think the facts here fall short of the McGowen [sic ] standard."
The reference to "McGowan" is presumably to People v. McGowan (1977), 45 Ill.App.3d 61, 3 Ill.Dec. 810, 359 N.E.2d 220 (). The case has not been discussed, however, by the parties on appeal.
We note that the trial court appears to have misapprehended Officer DeWitt's testimony as quoted earlier. In addition to hearing the loud noise, as noted by the court, Officer DeWitt "could tell there was something underneath the front of the truck." While it is true that he did not observe initially that the "something" was a garbage can, nonetheless, he both heard the noise and saw something under the truck. We believe it is important to clarify the record in this regard because the visual observation added substance to what the officer heard. The two observations, in turn, give substance to the State's argument below that the officer had articulable facts to form a reasonable belief that the driver was committing a "[p]ossible equipment violation." The State's argument, perhaps, lacked force and conviction because of the officer's acknowledgement that no laws were broken in his presence and because of the failure of the State to cite either an ordinance or statute; nevertheless, we believe the judgment of the trial court was manifestly erroneous.
The question presented by this appeal is whether a police officer may make an investigatory stop of a vehicle where he hears a loud noise emanating from it at 3 a.m. in a residential area and observes something under the front of the vehicle as it passes him going in the opposite direction. An officer may make a valid investigatory stop absent probable cause to arrest, provided the officer's decision is based on specific and articulable facts and reasonable inferences therefrom which warrant the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906; People v. Moffitt (1985), 138 Ill.App.3d 106, 111, 92 Ill.Dec. 702, 485 N.E.2d 513; Ill.Rev.Stat.1985, ch. 38, par. 107-14.) An objective standard is used: whether the facts available to the officer warrant a person of reasonable caution to believe that the action which the officer took was appropriate. A mere suspicion or hunch is insufficient. ( Moffitt, 138 Ill.App.3d 106, 92 Ill.Dec. 702, 485 N.E.2d 513; People v. Vena (1984), 122 Ill.App.3d 154, 160, 460 N.E.2d 886.) Thus, an officer may stop a vehicle if he reasonably infers from the circumstances that an occupant has committed, or is about to commit, an offense. (People v. Walter (1985), 133 Ill.App.3d 550, 551, 88 Ill.Dec. 677, 479 N.E.2d 12; People v. Patterson (1980), 88 Ill.App.3d 144, 146, 43 Ill.Dec. 223, 410 N.E.2d 223.) Since there is no uniform rule to determine when a reasonable suspicion exists, each case must be decided on its own facts. (People v. Vena (1984), 122 Ill.App.3d 154, 160...
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... ... (People v. Villarreal (1992), 152 Ill.2d 368, 373, 178 Ill.Dec. 400, 604 N.E.2d 923; People v. Houlihan (1988), 167 Ill.App.3d 638, 642, 118 Ill.Dec. 209, 521 N.E.2d 277.) Because these standards are sufficiently similar, we will consider both rulings ... ...